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This presentation was given at the “TheInternational Atomic Energy Agency at 60” Conference at the Wilson Center, organized by the Los Alamos National Laboratory, the Nuclear Proliferation International History Project, and the Wilson Center

Global governance in nuclear energy began sixty years ago when eighty-one countries approved the charter of the International Atomic Energy Agency (IAEA). Three years before, U.S. president Dwight Eisenhower had proposed creating such an organization to help realize visionary aspirations for nuclear energy that were current during the 1950s. Expectations for nuclear energy have since matured, but the IAEA has continued to serve its member states in the areas of nuclear verification, nuclear safety, and promotion of peaceful uses of nuclear technology.

But on what grounds does the IAEA do its work? Part of the answer is that for six decades the IAEA’s founding statute has continued to influence the decisionmaking at the interface between the agency’s secretariat and member states. This normally takes place in the IAEA’s two policy bodies, the thirty-five-member Board of Governors, and the General Conference, where all 168 member states are represented. As time went by, external developments and dramatic nuclear events swayed the views its members, affecting the scope of the IAEA’s activities, in some cases expanding them well beyond what was foreseen by the IAEA’s Statute in 1956.

IAEA safeguards follow from the agency’s statute but especially from the Treaty on the Non-Proliferation of Nuclear Weapons (NPT),1 which designates the IAEA as its verification agency.2 Safeguards are therefore legal obligations. That fact has reinforced states’ resolve to fund the IAEA’s safeguards work through its regular budget. This support was critical in the decades that followed entry into force of the NPT in 1970, during which time the demand for safeguards steadily increased. Because the IAEA’s obligations are spelled out in the fine print of legal instruments, the IAEA secretariat has considerable autonomy for implementing safeguards while being subject to strict constraints.

If we turn to other major IAEA program areas—nuclear safety, nuclear security, and technical cooperation—we find that the IAEA’s formal mandates are likewise critical, but unlike for safeguards, not founded upon treaty-based obligations, meaning that the IAEA’s work is more subject to state-secretariat political interactions and external developments.

Nuclear Safety

The statute calls upon the IAEA to “to establish or adopt . . . standards of safety for protection of health and minimization of danger to life and property.”3 Many, but over time a decreasing share, of IAEA nuclear safety activities follow from this article.

Sixty years ago it was expected that, analogous to safeguards inspections, the IAEA would also inspect installations to verify compliance with safety standards. But without treaty-based obligations for nuclear safety, during the 1970s the IAEA abandoned these verification objectives.

The IAEA nonetheless continued to seek greater authority vis-à-vis member states in nuclear safety matters. It sought to make its standards legally binding as early as the 1960s. The board has never agreed to this. Instead the IAEA opportunistically responded to severe accidents at Three Mile Island in the United States in 1979 and Chernobyl in the Soviet Union in 1986 by extending its influence and scope, permitting it to contribute to the establishment of a global legal framework for nuclear safety, even if it had little legal authority. This approach was most successful after Chernobyl because the magnitude of that event deprived the Soviet Union political leverage. Resistance by member states to major changes was more effective after less traumatizing accidents in Japan and the U.S. After the accident at Fukushima-Daiichi in Japan, a proposal by the secretariat that states formally commit to host safety reviews was defeated by powerful states.

Nearly from the outset, the IAEA has advocated creation of international conventions, including as a vehicle to universalize its standards. Three were established after Chernobyl, including a Convention on Nuclear Safety (CNS). The IAEA was brought into the CNS as both depositary and secretariat, but parties endowed the IAEA with no legal authority for rule making or verification.

The IAEA does have authority in nuclear safety matters that is not explicit, derived from its technical standard setting and the value of its expert missions. Western nuclear power vendor governments today routinely urge newcomer states to host IAEA reviews even before an initial nuclear power plant project is completed. In an age where public acceptance is ever more important, if a state will not host a review, its populace might conclude that there is something to hide.

Member states have resisted a multilateralization of nuclear safety regulation for numerous reasons. If a global minimal standard is made legally binding, it will be more difficult to improve it later. Empowering a multilateral body with regulatory functions might also blur the understanding—which is spelled out in the IAEA’s Fundamental Safety Principles—that the responsibility for oversight for a nuclear installation rests with the state having jurisdiction.

Nuclear Security

Unlike for safeguards and nuclear safety, the IAEA’s work in nuclear security has no statutory mandate. During the 1970s, the IAEA became aware that items subject to safeguards needed to be under effective “physical control.” Out of this was born the 1980 Convention on the Physical Protection of Nuclear Material (CPPNM).

Since then, the scope of nuclear security has enlarged well beyond physical protection, and the IAEA has entered the field as a provider of review missions, databases, training, technical information, and standards. Absent mention in the statute, the political will to support nuclear security activities has relied on external developments. These included a rise in nuclear materials trafficking after the demise of the Soviet Union, persistent radiological accidents, and the 9/11 attacks in the United States.

9/11 in fact spurred on an amendment of the CPPNM, but it took fifteen years to enter into force; many developing countries resisted expanding the IAEA’s nuclear security activities. For the IAEA to become the centerpiece of a future nuclear security “regime,” the lack of safeguards-type legal obligations has proved to be a challenge. By contrast, proliferation crises and severe reactor accidents have forged greater political will to enlarge the IAEA’s scope of activities in nuclear safety and in safeguards, respectively. The instinct of many states that nuclear security risks are less acute limits their support. Were a dramatic nuclear security event to occur, support for the IAEA’s efforts in this area would for certain increase.

Technical Cooperation

Article II of the IAEA Statute states: “The Agency shall seek to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world.” This is very general, but it is the basis for the IAEA’s Technical Cooperation (TC) program that is the primary rationale for membership in the IAEA of the great majority of member states.

From the beginning, concerns about equity have beset the IAEA’s management of its Technical Cooperation Fund (TCF). Unlike most international governmental organizations, the IAEA set up an autonomous funding scheme to assist states, informed by the view that, if funding were left to the United Nations Development Program, more developed and powerful states would get most of the resources.

Concerns about the equity of the TC program remain to this day. The statute says that the IAEA “is based on the principle of the sovereign equality of all its members . . . in order to ensure to all of them the rights and benefits resulting from membership.”4 Accordingly, the percentage of states receiving funding increased from 20 percent in 1980 to nearly 100 percent in 1990, including developed countries. However, the statute also says that the IAEA should “allocate its resources . . . bearing in mind the special needs of the under-developed areas of the world.”5 During board meetings and General Conferences as recently as this year, these articles have been cited by least-developed member states in reminding the IAEA that, as has been well documented, most TC assistance flows to states that are already moderately developed.

Not long after the NPT thrust upon the IAEA ever-greater safeguards obligations, nuclear “haves” and “have nots” agreed to link growth in safeguards funding with funding for TCF in what some participants have viewed as a cynical compromise. From 1970 until the onset of zero-growth budgets in 1994, the annual safeguards budget increased from US $1.2 million to about US $100 million, and the TCF increased from about US $5 million to about US $50 million. Today the numbers are higher—EUR €135 million for safeguards, and EUR €90 million for TCF—but the trade-off remains.

The TC program comprises both power and nonpower activities. When the world’s nuclear power sector became commercialized, the IAEA wisely adopted a supporting role for nuclear power involving capacity building, planning, and knowledge development. In this way the IAEA became an important source of information for about fifty countries that in recent years have considered the nuclear power option.

Critics claim to know that there is a fundamental conflict between the agency’s mandates to promote the peaceful use of nuclear energy and to advance safety and nonproliferation. The IAEA, like every nuclear power country, faces the challenge of separating promotional from normative and regulatory activities. In 2006, I attended a four-day IAEA seminar organized for two-dozen member states newly interested in nuclear power. The delegation leader from an East African state told me before the meeting that his country aimed to set up in initial nuclear power plant in ten years. After the meeting, he told me that his country would in fact need thirty years—hardly an indication that the IAEA is not prudent in assisting its member states in this area.

Aside from the apparent de facto truce that exists among 168 member states concerning funding of safeguards and TC, there occasionally have been challenges to the “peaceful use” credentials of TC activities, informed by language of Article II of the statute that says that assistance provided by the agency must not be “used in such a way as to further any military purpose.” A conflict erupted a decade ago over Iran’s access to TC for the Arak reactor project in light of the IAEA’s finding that Iran was out of compliance with its safeguards obligations. General concerns about the peaceful-use credentials of TC projects were first raised in 1979 when the board agreed to require Revised Supplementary Agreements from states to assure their projects were peaceful (a decision that prompted a few states to forego future TC for reasons of principle). The 1979 board resolution was the first of several initiatives to render the TC program more transparent, accountable, and efficient; that effort has been accelerated in this decade, contributing perhaps to the TCF getting closer to meeting its annual funding targets. Still, today there are TC projects that require the agency to carefully vet its activities, including projects for nuclear knowledge development including in states with nuclear weapons and having aspirations for nuclear navies.

IAEA Mandates Are Varied and Critical

Based on the record of the IAEA’s first sixty years, in all four above programmatic areas we can anticipate that in the future the agency’s activities will continue to be guided by its formal mandates and the political will of its member states.

The IAEA’s safeguards mandate, derived from legal obligations, is truly unique. Obligations from safeguards agreements—as distinct from suggestive language in the IAEA’s Statute—both constrain the IAEA’s freedom of action on verification and at the same time afford the IAEA considerable autonomy. Unlike the IAEA’s guidance on nuclear safety and nuclear security, the terms of the IAEA’s safeguards agreements oblige states subject to safeguards to implement these agreements to the letter.

The IAEA’s nuclear security activities demonstrate that it is possible for the IAEA to embark upon work not mandated by its statute, and that support may depend on external developments.

Especially in safeguards and nuclear safety, dramatic events have been critical in forming states’ political will to enlarge the IAEA’s sphere of activities. The revelations from the first Gulf War and the North Korean crisis led states to endow the secretariat with additional legal authority. Severe accidents gave the secretariat opportunities to expand its activities. The contributions of “events” to nuclear security have been less spectacular.

How member states fund the IAEA’s activities draws upon long-term working understandings guided by the IAEA Statute, primarily between states with nuclear weapons and advanced nuclear technology who see the IAEA’s primary role in nonproliferation and security, and states, nearly all without advanced nuclear technology, who view the IAEA as a vehicle for technological and economic development.

Notes

1 Article III A. 5 of the IAEA statute says that the agency may “apply safeguards, at the request of the parties, to any bilateral or multilateral arrangement, or at the request of a State, to any of that State’s activities in the field of atomic energy.”

2 “Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.”

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